EFCA Round-Up: Saturday, August 29, 2009
At Jottings By An Employer's Lawyer, Michael Fox comments on our earlier post about Senator Reid's comments to the Las Vegas Chamber of Commerce. Among his astute observations:
The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.
Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.
At Workplace Prof Blog, Professor Richard Bales links to the SSRN posting of George Mason University Professor Harry Hutchinson's article, "Employee Free Choice or Employee Forced Choice? Race in the MIrror of Exclusionary Hierarchy." The abstract suggests that EFCA would have a racially discriminatory impact:
The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects of this and other New Deal statutes on people of color. Readily available evidence shows that President Roosevelt’s insistence on raising the price of labor (1) increased unemployment and human suffering, and (2) also widened the unemployment gap between blacks and whites. Today, this wide, if not widening, unemployment gap remains in effect. Properly appreciated, the consequences of the New Deal for African Americans persist as an important and under-examined issue. It is likely that neither Progressive Era labor legislation nor contemporary efforts to further transform the labor market operate in the best interest of African American citizens. Provoked by the assertion that labor faces a legal crisis and the claim that the statutory right to organize is a sham, energized by the contention that the union movement ought to reinvent itself as a robust engine of collective insurgency against globalization, class-based injustice, and asserted increasing disparities in income, labor union advocates and hierarchs have offered a number of ideas that include the necessity of acting like a genuine rights movement, encouraging open source unionism, and creating alternative (nonunion) worker organizations.
One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate the necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize the workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This paper deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to show that rather than embracing freedom for workers, eliminating poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.
Finally, although it is not entirely clear what Senator Arlen Specter (D-PA) intends to do regarding EFCA when deliberation resumes -- and indeed it seems he continues to walk a tight-rope on the issue -- labor lobbying group American Rights at Work has launched an ad campaign "thanking" the Senator for his "reversal" on the bill. Per The Hill:
The American Rights at Work ad says Specter "listened" to that group in crafting his stance on the card check bill, a union organizing bill strongly supported by organized labor, and tells viewers to "thank Senator Specter and make sure he keeps listening."
The ad will run on national sites like the New York Times, Washington Post, and MSNBC websites, as well as several prominent political sites in Pennsylvania: Philly.com, PoliticsPA.com, KeystonePolitics.com, GrassrootsPA.com, and YoungPhillyPolitics.com.
